senate Bill S46A

Signed by Governor Amended

Relates to testing blood

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
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actions

  • 07 / Jan / 2009
    • REFERRED TO TRANSPORTATION
  • 06 / Jan / 2010
    • REFERRED TO TRANSPORTATION
  • 28 / Jan / 2010
    • AMEND AND RECOMMIT TO TRANSPORTATION
  • 28 / Jan / 2010
    • PRINT NUMBER 46A
  • 09 / Feb / 2010
    • 1ST REPORT CAL.134
  • 22 / Feb / 2010
    • 2ND REPORT CAL.
  • 23 / Feb / 2010
    • ADVANCED TO THIRD READING
  • 04 / Mar / 2010
    • PASSED SENATE
  • 04 / Mar / 2010
    • DELIVERED TO ASSEMBLY
  • 04 / Mar / 2010
    • REFERRED TO TRANSPORTATION
  • 10 / Jun / 2010
    • RECALLED FROM ASSEMBLY
  • 10 / Jun / 2010
    • RETURNED TO SENATE
  • 14 / Jun / 2010
    • VOTE RECONSIDERED - RESTORED TO THIRD READING
  • 14 / Jun / 2010
    • AMENDED ON THIRD READING (T) 46B
  • 18 / Jun / 2010
    • REPASSED SENATE
  • 18 / Jun / 2010
    • RETURNED TO ASSEMBLY
  • 18 / Jun / 2010
    • REFERRED TO CODES
  • 24 / Jun / 2010
    • SUBSTITUTED FOR A8601B
  • 24 / Jun / 2010
    • ORDERED TO THIRD READING RULES CAL.334
  • 24 / Jun / 2010
    • PASSED ASSEMBLY
  • 24 / Jun / 2010
    • RETURNED TO SENATE
  • 09 / Jul / 2010
    • DELIVERED TO GOVERNOR
  • 13 / Jul / 2010
    • SIGNED CHAP.169

Summary

Establishes certain persons, without being under the supervision and at the direction of a physician, may withdraw blood for the purpose of determining the alcoholic or drug content therein.

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Bill Details

Versions:
S46
S46A
S46B
Legislative Cycle:
2009-2010
Law Section:
Vehicle and Traffic Law
Laws Affected:
Amd ยง1194, V & T L
Versions Introduced in 2007-2008 Legislative Cycle:
S5974A

Sponsor Memo

BILL NUMBER: S46A

TITLE OF BILL :
An act to amend the vehicle and traffic law, in relation to persons
authorized to withdraw blood


PURPOSE :
To remove a conflict between current medical practice and a statutory
requirement of Physician supervision of blood draws.

SUMMARY OF PROVISIONS :
Section 1. Removes the requirement that a physician supervise the
withdrawal of blood from an intoxicated driver and lists the persons
authorized to withdraw blood.

JUSTIFICATION :
All too often, intoxicated drivers who are involved in motor vehicle
collisions escape prosecution. If a police officer requests that
medical personnel draw blood to test for intoxication after a
collision, this evidence is suppressed unless a physician is present
to supervise the procedure. This requirement is overly restrictive and
impedes the ability of police and prosecutors to enforce laws against
drunk or drugged driving. The medical community allows trained medical
personnel to routinely withdraw blood from individuals without the
direction and supervision of a physician. yet the VTL does not. The
following are a few examples of the ongoing difficulty faced by law
enforcement under current law.

Jack Shea, a double Olympic gold medalist and 91-year-old patriarch of
a three-generation Olympic family, was killed on January 23, 2002 in a
collision with a drunk driver. Although the driver was indicted for
vehicular manslaughter, criminally negligent homicide, and driving
while intoxicated, ultimately the district attorney could not present
proof of the driver's blood alcohol level. The blood was drawn at
Adirondack Medical Center, a small regional clinic where both men were
brought for treatment after the crash. No doctor was on duty to
supervise the drawing of the blood, only a physician's assistant. As
Jack Shea was the more severely injured of the two men and in need of
immediate medical attention, both the physician's assistant and the
registered nurse at the clinic were occupied with treating him. When
the police officer requested that blood be drawn from the driver, both
the physician's assistant and the nurse directed an advanced emergency
medical technician to draw the blood. The driver consented to the
blood test, which showed a blood alcohol level of .15, and the
physician's assistant later testified that there was no danger to the
driver in withdrawing the blood. Nonetheless, in October 2002, the
judge in the case ruled that the blood-alcohol test was illegally
administered because it was not supervised by a physician. As a
result, the District Attorney was unable to use the blood as evidence
and had to dismiss the charges. Although the District Attorney
appealed the ruling, the appellate court felt compelled by the statute
to uphold the suppression of the evidence. However, the Judges called
on the legislature to amend the statute to remedy what they saw as an
unnecessary restriction in the law. (people v Reynolds, 307 A.D.2nd
391 (3m Dept. 2003)

A defendant in Sullivan County escaped a felony drinking while driving
conviction because it could not he shown that a doctor had either
directly or indirectly supervised the drawing of blood for an alcohol
test. As reported by John Caber in the New York Law Journal on July 1,
2004, the Court revisited the admissibility of the blood draw after
the conviction and then suppressed the evidence, overturned the
conviction and dismissed the indictment. The technologist who drew the
blood testified that she had never discussed the matter with a doctor,
that there was no paperwork indicating he was ultimately in charge of
the blood draw, and that she merely assumed that standard procedures
were being followed. The Court ruled according to the established
interpretation of the statute, which requires direct supervision by a
physician, rather than simple adherence to standard procedures.

The defendant's attorney, Mark J. Sherman, said that while the case
does not break new ground, it does reflect a disconnect between modem
medical practice and the requirements of the Vehicle and Traffic Law -
a disconnect that DWI defendants can sometimes use to their advantage.
He said at present there is probably no medical need to have a doctor
supervise the drawing of blood, yet the law requires it for law
enforcement purposes. "At some point someone will ask the Legislature
to take a look at current medical practice and compare it to the
statute," he said. "Someone is going to stand up and say that either
the statute has to bend or medical practice has to change. This
decision may bring that one day closer."

On May 27, 2001 a defendant in Nassau County rammed his car into the
back of a vehicle that was stopped at a red light, killing two men and
injuring three others. An advanced emergency medical technician
withdrew blood from the defendant in the emergency room. The Medical
Director in charge of Medical Control at Nassau County Medical Center
testified that the advanced emergency medical technician acted under a
protocol that had been established by an Emergency Medicine Committee
of thirty physicians. Yet, the Trial Court felt constrained to deny
admission of the defendant's blood alcohol content because the doctor
in the emergency room at that time had not specifically "directed" him
to do so. The Court stated "I agree with you, Gallub (the advanced
emergency medical technician who drew the blood) is probably more
qualified than a registered professional nurse, probably, but that's
not what the statute says." After the loss of this important evidence
at trial, the defendant was only convicted of criminally negligent
homicide.

A defendant in Dutchess County also exploited this glaring statutory
omission. Robert Raphael, Jr. died on October 20, 2004, as a result of
the actions of a drugged driver. The offender, who was injured, was to
be transported to the nearest hospital, which was in the State of
Connecticut. The arresting officer, unsure of the legal efficacy of
attempting to get a blood test administered out of state, requested an
advanced emergency medical technician to withdraw blood at the scene.
The advanced emergency medical technician did so using accepted
medical standards. The advanced emergency medical technician was also
authorized to withdraw the blood under a general and continuous
written authorization from the Connecticut hospital, a participant in
the Hudson Valley Regional EMS Advanced Life Support Protocols.
Following the statute as currently written, the Court indicated a
belief that the blood test would be suppressed. The prosecutor had to
accept a plea that resulted in local jail time for the defendant when
clearly state prison would have been the appropriate sentence.

The Fourth Department has held that authorization by a registered
nurse who did not personally observe the sample being taken is not in
compliance with the statute, (People v. Ebner, 195 A.D.2d 1006, 600
N.Y.S.2d 569). Similarly, in People v. Olmstead (233 A.D.2d 837, 649 N
Y.S.2d 624), the blood was drawn by a medical laboratory technician at
the direction of a registered nurse, rather than a physician, also
resulting in the suppression of the blood alcohol results (see also,
People v. Pickard, 180 Misc.2d 942.692 NY.S.2d 88, 1v. denied 94
NY.2d 865, 704 N.Y.S.2d 541; People v. Gertz, 189 Misc.2d 315, 731
NY.S.2d 326).

In response to this problem, which is not singular to New York, a
number of states have enacted legislation that allows the legal
standard to mirror the medical community's standard for the withdrawal
of blood.
LEGISLATIVE HISTORY :
2007-2008 Passed the Senate (S.5974-A/A.688-A)

FISCAL IMPLICATIONS :
None.

EFFECTIVE DATE :
This act shall take effect on the first day of November next
succeeding the date on which it shall have become a law.
view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  46--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced by Sens. FUSCHILLO, DeFRANCISCO, HANNON, C. JOHNSON, O. JOHN-
  SON,  LARKIN,  MORAHAN,  NOZZOLIO,  ONORATO,  VOLKER -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Transportation  --  recommitted  to the Committee on Transportation in
  accordance with Senate Rule 6, sec. 8 --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the vehicle and traffic  law,  in  relation  to  persons
  authorized to withdraw blood

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph 1 of paragraph (a) of subdivision 4 of section
1194 of the vehicle and traffic law, as amended by chapter  406  of  the
laws of 1988, is amended to read as follows:
  (1)  At  the  request  of  a police officer, the following persons may
withdraw blood for the purpose of  determining  the  alcoholic  or  drug
content  therein:  [(i)] a physician[,]; a registered professional nurse
[or]; A LICENSED PRACTICAL NURSE; A  NURSE  PRACTITIONER;  a  registered
physician's  assistant; [or (ii) under the supervision and at the direc-
tion of a physician:] a medical laboratory technician or  medical  tech-
nologist  as  classified  by  civil service; a phlebotomist; an advanced
emergency medical technician as certified by the department  of  health;
[or] a medical laboratory technician or medical technologist employed by
a  clinical  laboratory approved under title five of article five of the
public health law; OR OTHER PERSON DULY LICENSED BY  THE  STATE  WHO  BY
CONDITION  OF  HIS  OR HER LICENSE IS QUALIFIED TO WITHDRAW BLOOD IN THE
STATE. This limitation shall not apply to the taking of a urine,  saliva
or breath specimen.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00946-02-0

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